Bloomberg has a piece in which it lays out the expected outlines of the Federal Trade Commission (FTC) antitrust case against Amazon – and explains why it is a long shot unlikely to ultimately be successful.
The FTC, Bloomberg writes, “will likely posit that while Amazon may offer good deals to consumers, it has illegally tightened its grip on the small sellers that rely on the site, charging onerous fees for rapid shipping and advertising, knocking off their products with private labels and using anti-competitive tactics to harm the e-commerce market … The FTC will argue that by insisting it have the lowest prices online, and demoting the visibility of sellers who list higher prices on Amazon than on other websites, Amazon is effectively restricting competition and inflating prices across the internet.
“Another way of saying this is that Amazon should promote higher prices on its site, which flies against the last 50 years of antitrust doctrine. Courts have been reticent to tell companies they have to charge more.”
Bloomberg also suggests that “another FTC argument will be that Amazon commands enough market share to be dubbed a monopoly and that it illegally abuses that position. Here you can expect a furious disagreement about what Amazon’s actual market is. The company will say (dubiously) that it commands a tiny sliver of global and US retail, online and off.
“But even by traditional measures of e-commerce, Amazon’s market share has plateaued at around 37%, particularly as it’s struggled with trends like shopping on social networks, online auto sales and brands that sell direct to consumer — a corner of the internet where Shopify Inc. dominates.”
“If we had something called the daily racing form for antitrust, it would say the odds of the FTC’s success in all of these ambitious goals is somewhat remote,” William Kovacic, a former FTC commissioner and now a professor at George Washington Law School, tells Bloomberg. “But the company can’t just brush this off. Long-shots sometimes win.”
KC’s View:
One thing that does not seem to be a long shot is the probability that the FTC is going to take some kind of action against Amazon. That’s the basic mindset that FTC chair Lina Khan brought to the table when she got the job. Even though Amazon execs are meeting with the FTC this week to see if there is any possible it can head off any action, that seems unlikely at this point.
My problem with what appears to be the FTC case is that many of the things that Amazon is doing are practices also used by other retailers – Amazon just does them bigger and better and faster. And I think Amazon can make a very good case that most of what it does is shopper-centric.
I suspect that Amazon has a doomsday plan filed away somewhere that is a guide to how to handle a breakup of the company or other FT dictates. There are those who think the company actually may be worth more broken up than it is intact.
Whatever happens, it is going to be interesting. And I don’t expect Jeff Bezos to just let the company he built be torn apart.
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